Archive/File: people/e/eichmann.adolf/transcripts/Appeal/Appeal-Session-06-03
Last-Modified: 1999/06/15
Justice Silberg: That is not correct. The second document
came from Veesenmayer. You are referring to T/1244. This is
Veesenmayer's report on Grell's action. He writes:
"Legation Counsellor Grell reports that it is true that
the Commander of the SD (Special Commando for actions
against the Jews) SS Obersturmbannfuehrer Eichmann and
his deputy..."
This would mean that Grell or Veesenmayer knew who was meant
by the Swedish Legation when they wrote "by a Mr. Eichmann."
At the end of the letter, it says:
"A final description of the facts can be given,
however, only after questioning Obersturmbannfuehrer
Eichmann who, at present, is en route. As soon as that
will be possible, a further report will be made."
Dr. Servatius: No doubt the Embassy people were of the
opinion that this can refer to him only, and without asking
him, at that stage a statement is made to the effect that
there had been justified complaints. That is to say, the
Embassy was aware of these complaints. But the Embassy holds
the same view, and it is quite possible that Eichmann was
not the person in question, but that it originated directly
from the Embassy, from Winkelmann and, through him, from
Geschke. For it is certainly strange that Eichmann, who is
mentioned at this stage, would have come and uttered such
threats in his capacity as a messenger. It does not fit the
general situation at all. In my opinion, this may even be
construed as an exoneration of the Accused. For if he had
been famous and notorious as alleged, they would not have
written simply: "Mr. Eichmann left a message."
President: Dr. Servatius, the interpreter did not
understand the last sentence, would you please repeat it.
Dr. Servatius: I cannot do so with certainty. I can only
say that it can only exonerate Eichmann if the Swedish
office did not know this notorious and dangerous person at
all, but considered him as a sort of messenger. If he were
as dangerous as all that, they certainly would have been
aware of it.
Some additional remarks concerning the concentration camps:
The Accused had directed deportations to both the
concentration camps and extermination camps. These were the
places of destination which had been indicated to him. The
fact that he was notified of the arrival of the transport
cannot lead to the conclusion that the killings in the camps
were carried out only upon the Accused's order. Reports of
this nature were notification of implementation usually made
regarding every transport.
The argument put forward by the Attorney General, that the
Accused had thereby fixed the date of death, is incorrect.
He set the transports in motion as soon as the Reich
Railways Administration made the trains available. I refer
again to the testimony of SS Judge Morgen that the Accused
did not have anything to do with the extermination itself.
I shall now deal with the applications for taking evidence.
First of all, the witness Wetzel. Regarding the production
of gassing machinery, I would point out, at the outset, that
all technical matters came within the province of section
IID of the RSHA. This becomes apparent from the practice
followed in the use of gas vans. A document, T/309, has been
submitted, which is a report made by a certain Dr. Becher,
addressed to Rauff and dated 16 May 1942, Section IID3. The
document concerns the use of gas vans. In other documents,
too, it is only this Section which is referred to in
connection with the use of gas vans.
As to the Wetzel documents themselves, in my opinion it
seems that the name of the Accused has been inserted by
mistake. I have applied to hear Wetzel as a witness. The
conditions for such an examination exist. The witness could
not be called in the Lower Court, as his whereabouts were
then not known. No objection to the examination of the
witness can be made on the grounds that the credibility of
the witness has to be established first. The issue of
credibility cannot be examined in advance, it has to be
examined during the course of the hearing. The Court will
have to decide on it.
Justice Agranat The credibility of the witness is not in
question, but rather the content of the testimony.
Dr. Servatius: The Attorney General argued, in the
beginning, that credibility is relevant, that there is no
need to summon a witness who is not credible. Of course, it
is also important that the testimony be relevant. If the
witness Wetzel were to testify that he had never spoken to
Eichmann, this would be most relevant, because it
contradicts the report which has been produced.
President: I am afraid that you, Sir, have not understood
the remark of my learned colleague. I shall give an example:
Let us assume that a trial is taking place of a person
accused of theft, and that the accused has admitted that he
has carried out the theft. On appeal, counsel for the
defence wishes to call a witness who will testify that he
had not stolen. In that case the Court is entitled to reject
the application on the ground that, as to the contents of
the testimony, this is not a matter which may be given
credence, because the accused himself has admitted the fact
that he had committed the theft. Thus what purpose would be
served by a witness testifying that the Accused had not
stolen? In this context, it is a question of the credibility
of the content, not of the witness.
Dr. Servatius: Mr. President, that is true. It is the rule
in all countries that, where a confession has been made, no
witnesses who would testify to something else need be heard.
But the Accused denies having made such a confession, for
this confession can be found only in the Sassen Document,
and I have already voiced my criticism regarding this.
@4Justice Silberg: Counsel for the Defence, you are
mistaken.
Dr. Servatius: The Accused has also made a statement to
the Police - but this was one of his attempts at
reconstruction. The documents were shown to him - not in
their order as they are arranged here - but only
fragmentarily, in particular the second exhibit according to
the order, and the Accused declared "if that is written
here, then I ought to have received the order to do it, but
I don't remember." When only later, a month or two later, he
had seen the entire set of documents, he said "that cannot
have happened." Therefore, his correction is quite
understandable, and you cannot consider this to be an
existing confession on the part of the Accused.
President: He had also said that Wetzel talked to him about
this matter.
Dr. Servatius: I have talked to him on the telephone.
However, I could not question him, as is customary in the
practice of Anglo-American law which applies here too. Under
German law this is strictly prohibited and constitutes one
of the most serious professional offences.
Justice Silberg: Dr. Servatius, this matter has come to the
knowledge of the Court through the Green Series, from the
Nuremberg files. Isn't that correct?
Dr. Servatius: Yes, from Brack's interrogation.
Justice Silber In the Nuremberg file, Brack, an officer in
the chancellery of the Fuehrer, was the Accused, and nobody
else except Brack's associates. Who could have been
interested, in these proceedings against Brack, to bring up
the name of Eichmann?
Dr. Servatius: But the most essential fact is revealed
here: Brack says that Eichmann never came to see him.
Justice Silberg: Brack says that during his absence from
Berlin someone had written this letter behind his back. But
you, Sir, know that we are dealing here with a document
which had been submitted in the Nuremberg Trials, in the
proceedings against Brack. The name Obersturmbannfuehrer
Eichmann was not there, and someone has inserted it. I ask
you: Who could have profited from the insertion of
Eichmann's name? Why would someone do this?
Dr. Servatius: Your Honour, but in Nuremberg a kind of myth
was created. This myth centred around the name of Eichmann.
It should not be forgotten that the Accused were together
more or less in the same building, they met and discussed
everything, so that they passed it on to each other. And
when the question arose: But who did it, after all, the name
Eichmann came up. We have heard it from Goering, and from
Ribbentrop. All of them declared unanimously: Hitler charged
Eichmann with the Final Solution. However, that cannot be
correct.
I now revert to the application to take evidence, namely to
consider once again Joel Brand's report and to examine the
witnesses, Mr. and Mrs. Brand, as well as additional
witnesses. It has struck me that the Attorney General failed
to rely upon a document from the Kasztner trial, although I
presume that this document was available. I think that I may
conclude therefrom that the report included the so-called
"ten per cent clause," and it was this that was put forward
by the Defence. The production of these means of evidence is
relevant,in order to elucidate what were the Accused's inner
feelings.
President: I find it somewhat difficult to understand. On
the one hand, you claim that everything done by the
Appellant was on superior orders and that nothing was done
without such an order. He was only an implementing clerk. On
the other hand, you want to give him the credit of the "ten
per cent" matter. Even if that were correct, and Joel Brand
was not mistaken, then that would be in keeping with an
order he had received, according to the argument of the
Defence.
Dr. Servatius: Mr. President, the implementation of this
arrangement was ordered from above. However, the Accused
claims that at first he recommended to his superiors that
the ten per cent clause be included. For that purpose he
travelled to Berlin several times and, as he has stated, had
recommended this clause in order to make the agreement
attractive and acceptable. It emerges from the fact of this
offer that the Accused was not a fanatic persecutor of the
Jews who acted mercilessly. The fact of the offer to permit
the departure of one hundred thousand Jews contradicts this
finding in the Judgment. In my opinion, the District Court,
too, was aware of this contradiction; the Court thought that
it could only be explained by a mistake on the part of the
witnesses. I believe that the utmost significance of this
document makes its admission inevitable. If the report does
not include the ten per cent clause, the witnesses indicated
by the Defence ought to be examined.
President: All these witnesses could have been examined in
the Lower Court. Perhaps the omission to do so is a
consequence of the lack of familiarity with the local rules
of procedure. But it happens very rarely that a court of
appeal will examine witnesses, especially if the witnesses
were in the Lower Court.
Dr. Servatius: Mr. President, no doubt this is an unusual
occurrence; but both witnesses actually testified that this
clause was agreed upon. Therefore, no reason existed to call
additional witnesses. However, it is surprising that the
Court declared that the witnesses were mistaken.
Justice Agranat What is the importance of this testimony?
Is it not possible to challenge the finding of the Court
that the Appellant did not initiate the proposal?
Dr. Servatius: The testimony is important because it will
emphasize the inner attitude of the Accused. The Accused is
blamed for fanatically having done everything possible to
persecute Jews. But here it would appear that he was
prepared to permit the departure of one hundred thousand
Jews.
I now come to the application to admit the Accused's notes
as evidence. These are notes which were made by the Accused
after the Judgment of the Lower Court, and which are to be
found in his cell.
President: You cannot argue this point, because we have
already told the Attorney General that he does not need to
answer your application. We have already decided to reject
this application without calling upon the Attorney General
to reply. Are you referring to notes made by the Accused
after the Judgment?
Dr. Servatius: Yes, Your Honour. I was not aware that the
application had already been rejected. I will not repeat it.
President: It is the practice of the Court: If the
respondent is not called upon to reply, that means that the
appellant's argument is rejected.
Dr. Servatius: At the conclusion of his address, the
Attorney General emphasized in particular that the Accused
does not show any sign of repentance, and that the Accused
declared that repentance would not serve any purpose. This
statement has to be compared with the Accused's words quoted
by the Attorney General at the outset of his address - the
Accused's Statement made at the outset of his interrogation
in Israel. At that time, he declared that he understood that
the death penalty would be inflicted on him, and that it
would be improper for him to ask for mercy. This shows that
the Accused does not callously pass over the exterminations.
The Accused acknowledges that atonement could be required,
and he is prepared to atone. But this atonement should not
be meaningless. He desires to hang himself in public as a
warning to the youth against anti-Semitism. This will
explain the meaning of his statement that repentance is a
matter for a child, and therefore it is meaningless.
Repentance presupposes the existence of guilt. The Accused
has always denied the existence of guilt as legally defined.
However, he has admitted distinctly to feeling guilty from a
moral point of view. This is the feeling of responsibility
even for the acts of others in which we are involved as
members of a community.
In my opinion, the Accused's attitude is, from a human point
of view, of higher value than hypocritical feigning of
repentance. It is a desperate stand taken when confronted
with the problem of being held guilty which has not been
solved.
This trial takes place against the background of history.
Its meaning is a closed book to us. It is possible that the
intention was evil, but the evil eventually turns to good.
The Accused, as an individual, was thrust into the political
events. His own volition was not relevant. The Accused could
have chosen an alternative. But not only did he lack free
reflection, he was also blinded by propaganda and outward
success. Only oath and obedience existed for the Accused.
This is the end of my address, and I pray this Honourable
Court to refer also to the submissions made in the Lower
Court, in order to decide on the facts and the legal
aspects. I apply for a ruling on the applications to take
evidence, and I repeat the applications made previously.
[Recess]
President: It has been decided to reject the Appellant's
request to submit further evidence, including documents, at
the stage of the appeal.
The appeal is adjourned for consideration. Notice of the
date of Judgment will be given to the parties.
[The session concluded at 11.35]

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